Citation Nr: 18104043
Decision Date: 05/21/18 Archive Date: 05/20/18
DOCKET NO. 14-41 332
DATE: May 21, 2018
ORDER
Service connection for posttraumatic stress disorder (PTSD) is denied.
Service connection for an acquired psychiatric disorder, other than PTSD, and to include other specified trauma and stressor related disorder is granted.
A rating greater than 10 percent for metatarsalgia, status post bunionectomy of the right foot is denied.
A rating greater than 10 percent for hallux valgus, bunion of the first metatarsophalangeal (MTP) joint of the left foot is denied.
A separate rating of 10 percent for bilateral pes planus is granted.
A rating greater than 20 percent for hepatitis C is denied.
Since February 12, 2017, a separate rating of 50 percent for cirrhosis of the liver is granted.
In addition, some issues have been remanded.
FINDINGS OF FACT
1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of PTSD according to the DSM-5.
2. The Veteran’s acquired psychiatric disorder, to include other specified trauma and stressor related disorder is related to service.
3. The Veteran is in receipt of the maximum schedular rating available for metatarsalgia status post bunionectomy of the right foot.
4. The Veteran is in receipt of the maximum rating available for hallux valgus, bunion at the first MTP joint of the left foot.
5. The Veteran’s bilateral pes planus is characterized by weight bearing line over or medial to the great toe, inward bowing of the tendo Achilles, and reported painfulness and tenderness of the feet; however, although there is pronation and abduction, there was not accentuated pain on manipulation and use, swelling and characteristic callosities.
6. The Veteran’s service-connected hepatitis C has been consistently manifested by daily fatigue and malaise, with additional symptoms; there is no evidence of daily anorexia, malaise and fatigue with minor weight loss and hepatomegaly attributable to hepatitis C, or credible evidence of four or more weeks of incapacitating episodes.
7. The Veteran has cirrhosis of the liver, confirmed by fibroscan imaging and abnormal liver function tests, which includes a history of one episode of ascites documented February 12, 2017, and weakness, but not two or more episodes of ascites, hepatic encephalopathy, or hemorrhage.
CONCLUSIONS OF LAW
1. The criteria for PTSD have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(f), 4.125 (2017).
2. The criteria for an acquired psychiatric disorder, other than PTSD, and to include specified trauma and stressor related disorder, have been satisfied. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2017).
3. The criteria for a rating greater than 10 percent for metatarsalgia, status post bunionectomy of the right foot have not been satisfied; the Veteran is in receipt of the maximum schedular rating. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.71a, DC 5279 (2017).
4. The criteria for a rating greater than 10 percent for hallux valgus, bunion first MTP joint of the left foot have not been satisfied; the Veteran is in receipt of the maximum schedular rating. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.71a, DC 5280 (2017).
5. The criteria for a separate 10 percent rating for bilateral pes planus have been satisfied. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.71a, DC 5276 (2017).
6. The criteria for a rating greater than 20 percent for hepatitis C have not been satisfied. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.114, DC 7354 (2017).
7. Since February 12, 2017, the criteria for a separate 50 percent rating for cirrhosis of the liver have been satisfied. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.112, 4.114, Diagnostic Code 7312 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active service from August 1973 to August 1993.
The Board has recharacterized the acquired psychiatric disorder claim as is, where the record reflects that the Veteran had varying diagnoses, to include other specified trauma and stressor related disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) (the scope of a claim for a mental health disability includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and other information of record).
The Veteran’s increased rating claims for history of pes planus with metatarsalgia, status post bunionectomy right foot and history of pes planus with left foot hallux valgus of the first MTP joint have been recharacterized as metatarsalgia, status post bunionectomy right foot and left foot hallux valgus of the first MTP joint, with a separate rating given for bilateral pes planus. This is in accord with the evidence of record.
REFERRED
The Board acknowledges that the issues of whether there is new and material evidence to reopen claims of service connection for bilateral shoulder, low back, hemorrhoids, and pseudofolliculitis barbae, as well as for an increased rating for dermatitis and eczema have been perfected, but not yet certified to the Board. The Board’s review of the claims file reveals that the AOJ is still acting on these issues. As such, the Board will not accept jurisdiction over them at this time, but they will be the subject of a subsequent Board decision, if otherwise in order.
Service Connection
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013).
Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor, and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran’s service, his lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f).
As the Veteran’s claim was certified to the Board after August 4, 2014, the DSM-5 is applicable to this case.
1. PTSD
A July 2015 initial psychiatric assessment by H. Jabbour, M.D. included psychiatric diagnoses, but did not evaluate PTSD. Although VA treatment references from 2017 referenced the Veteran’s outside diagnosis of PTSD by Dr. Jabbour, this appears to have been based on the Veteran’s inaccurate report, because the medical record from Dr. Jabbour does not diagnose PTSD according to the DSM-5. Further, a positive PTSD screen in the VA treatment record is not sufficient to establish a diagnosis according to 38 C.F.R. § 4.125. Claims Folder Document
Following November 2015 VA examination for PTSD, the examiner opined that there was no diagnosis for PTSD according to the DSM-5, because the Veteran had only one symptom under criteria D for negative alterations in cognitions and mood associated with the traumatic events. Claims Folder Document
The Board points out that a key element in establishing service connection is to show that the Veteran currently has a diagnosis of the disability for which service connection is sought. See 38 C.F.R. § 3.304. The evidence thus demonstrates that PTSD has not been diagnosed in accordance with 38 C.F.R. § 4.125. Since regulations require medical evidence diagnosing the claimed condition, the Veteran’s self-assessment is not competent. 38 C.F.R. § 3.304. In this respect, a medical professional has the greater skill. The Veteran’s account that he has PTSD is not competent to establish a lay nexus to service. See Jandreau v. Nicholson, 492, F.3d 1371 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331.
In the absence of a diagnosis of current disability, specifically PTSD in accordance with 38 C.F.R. § 4.125, there can be no valid claim in this regard. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, the preponderance of the evidence is against the claim and service connection for PTSD is denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).
2. Acquired Psychiatric Disorder
The Veteran essentially contends that he has an acquired psychiatric disorder due to service, which includes stressful events such as fearing he would be shot when he was held at gunpoint following a wrong turn, witnessing another soldier get run over by a truck, and narrowly making it to the bunker before a missile hit nearby.
The Board concludes that the Veteran has a current psychiatric diagnosis that is related to his experiences in service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).
In July 2015 Dr. Jabbour diagnosed the Veteran as having specified trauma and stressor-related disorder and depressive disorder, moderate, related to his chronic pain. Dr. Jabbour indicated that it was at least as likely as not that the Veteran’s other specified trauma and stressor related disorder was incurred in or caused by his military service, and resulted from a fear of hostile military or terrorist activities.
Following the November 2015 VA examination, the examiner opined that it was as likely as not that the Veteran’s other specified trauma and stressor related disorder is due to events described during military service. The examiner opined that the evidence in support of this included the support statement from the Veteran’s wife noting decreased sleep and lack of interest in activities, as well as the assessment by Dr. Jabbour, noting events in service contributing to the Veteran’s other specified trauma and stressor related disorder.
As such, the preponderance of the evidence is in favor of finding that the Veteran has an acquired psychiatric disorder due to service.
Increased Rating
Disability evaluations are determined by comparing a veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1, Part 4.
Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3.
Consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).
The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).
3. Metatarsalgia, status post bunionectomy right foot
The Veteran’s metatarsalgia, status post bunionectomy of the right foot is rated as 10 percent disabling according to Diagnostic Code (DC) 5279.
Metatarsalgia, anterior (Morton’s disease), unilateral or bilateral is rated as 10 percent disabling, which is the maximum schedular rating available according to DC 5279. 38 C.F.R. § 4.71a.
July 2017 VA treatment note indicated that the Veteran experienced pain in both feet, and reported that his feet continued to hurt even with insoles, and he needed special orthopedic molding for foot support. Claims Folder Document
In November 2014 the Veteran reported that insoles no longer helped him, and he felt he was walking on the side of his left foot, and experiencing some numbness of the lesser toes of the left foot. The Veteran had a history of pes planus. Claims Folder Document
The Veteran is in receipt of a maximum 10 percent rating for right foot metatarsalgia over the entire appeal period, and a higher rating is therefore not possible under DC 5279. For the foregoing reasons, the Board finds that the Veteran’s service-connected right foot metatarsalgia has not warranted a rating greater than 10 percent at any time during the appeal period. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3 (2017).
4. Hallux valgus, bunion first MPT joint of the left foot
The Veteran’s left foot hallux valgus of the first MTP joint is rated under DC 5280, which provides ratings for unilateral hallux valgus. Unilateral hallux valgus that is severe, if equivalent to amputation of the great toe, is rated 10 percent disabling. Unilateral hallux valgus that has been operated upon with resection of metatarsal head is rated as 10 percent disabling. 38 C.F.R. § 4.71a.
Medical records show that the Veteran had a left great toe bunionectomy in March 2010. Claims Folder Document
The Veteran is in receipt of a maximum 10 percent rating for left foot hallux valgus over the entire appeal period, and a higher rating is therefore not possible under DC 5280. For the foregoing reasons, the Board finds that the Veteran’s service-connected left foot hallux valgus has not warranted a rating greater than 10 percent at any time during the appeal period. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3 (2017).
In Copeland v. McDonald, 27 Vet. App. 333, 338 (2015), the United States Court of Appeals for Veterans Claims (Court) held that the eight specifically named foot disabilities noted in the Rating Schedule could not be, as a matter of law, rated to by analogy under DC 5284. As the Veteran’s right foot disability is repeatedly described as history of pes planus with metatarsalgia, status post bunionectomy of the right foot, and the left foot disability is repeatedly described in the record as history of flat feet/pes planus with hallux vagus, the appropriate DCs for consideration are DC 5276, 5279 and 5280, not DC 5284.
Flat foot (pes planus) is defined as a condition in which one or more of the arches of the foot have been lowered and flattened out. DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 416 (32nd ed. 2012). Metatarsalgia is defined as pain and tenderness in the metatarsal region. DORLANDS ILLUSTRATED MEDICAL DICTIONARY 1145 (32d ed. 2012). Hallux valgus is generally defined as angulation of the great toe away from the midline of the body or toward the other toes, where the great toe may ride under or over the other toes. DORLAND ILLUSTRATED MEDICAL DICTIONARY 818 (32d ed. 2012).
The Board finds it appropriate to consider whether a separate rating for pes planus under DC 5276 is warranted for the history of pes planus of the right and left feet, without violating the rules against pyramiding under 38 C.F.R. § 3.14 per Esteban, 6 Vet. App. 259, 262 (1994).
Pes planus is rated under Diagnostic Code (DC) 5276. Under this diagnostic code, mild flatfoot with symptoms relieved by built-up shoe or arch support is rated as noncompensably (0 percent) disabling. 38 C.F.R. § 4.71a. Moderate flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral, is rated 10 percent disabling. 38 C.F.R. § 4.71a, DC 5276. Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, is rated 20 percent disabling for unilateral disability, and is rated 30 percent disabling for bilateral disability. Id. Pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo achillis on manipulation, that is not improved by orthopedic shoes or appliances, is rated 30 percent disabling for unilateral disability, and is rated 50 percent disabling for bilateral disability. Id
At the April 2011 VA examination for the left and right feet, there was inward bowing of the tendo Achilles with weight bearing, and the weight bearing line was located medial to the great toe. Although the examiner indicated that there was not pain on manipulation, the Veteran reported pain on use of the left and right foot, and there was evidence of painful motion and tenderness. There was moderate pronation on the left and marked pronation on the right, and abduction was noted more on the left than the right.
As such, a separate 10 percent rating for bilateral pes planus according to DC 5276 is warranted. A higher rating is not, however, warranted. Although there was pronation and abduction, there was not accentuated pain on manipulation and use, swelling and characteristic callosities.
In sum, the Board finds that a separate 10 percent rating for bilateral pes planus, but no higher, is warranted. 38 C.F.R. § 4.71a, DC 5276.
5. Hepatitis C
The Veteran’s hepatitis was formerly rated under 38 C.F.R. § 4.114, DC 7345 as chronic liver disease without cirrhosis (excluding hepatitis C). However, as the Veteran has been diagnosed as having hepatitis C and cirrhosis, a rating under 38 C.F.R. § 4.114, DC 7354 for hepatitis C is more appropriate, and was reflected in the most recent rating code sheet. As such, the Veteran’s hepatitis C is rated as 20 percent disabling according to DC 7354.
Under DC 7354, a 20 percent rating is warranted for daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. 38 C.F.R. § 4.114, DC 7354.
A 40 percent rating is warranted for daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period. Id.
A 60 percent rating is warranted for daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly. 38 C.F.R. § 4.114, DC 7354.
A 100 percent rating is warranted for near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). Id.
Note (1) indicates that sequelae, such as cirrhosis or malignancy of the liver, are to be evaluated under an appropriate diagnostic code, but should not be based on the same signs and symptoms as the basis for evaluation under DC 7354.
Note (2) indicates that, for purposes of evaluating conditions under DC 7354, ‘incapacitating episode’ means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician.
The term “substantial weight loss” means a loss of greater than 20 percent of the individual’s baseline weight, sustained for three months or longer. The term “minor weight loss” means a weight loss of 10 to 20 percent of the individual’s baseline weight, sustained for three months or longer. In addition, the term “inability to gain weight” means that there has been substantial weight loss with an inability to regain it despite appropriate therapy, and “baseline weight” means the average weight for the two-year period preceding onset of the disease. 38 C.F.R. § 4.112.
At his April 2012 VA examination for hepatitis C, the Veteran described experiencing blood in stools, loose stools, excessive gas, right upper quadrant pain, and emotional stress on his marriage. No continuous medications were required for liver functions. He experienced near constant and debilitating fatigue, intermittent malaise, anorexia, arthralgia and right upper quadrant pain, and daily nausea and vomiting. The Veteran experienced at least one week but less than two weeks of incapacitating episodes. The examiner indicated that functionally the Veteran was required to take time off from work due to complications of his hepatitis C, including pain and fatigue. Further, he was on a restricted diet to prevent severe gastritis. April 2012 laboratory tests were limited.
VA treatment records show that in November 2013 the Veteran’s ultrasound revealed hepatomegaly with fatty infiltration, without masses. December 2013 VA treatment records show elevated liver enzymes, according to alanine aminotransferase (ALT) and aspartate aminotransferase (AST) testing.
VA treatment notes from January 2018 indicated that the Veteran’s weight was stable. Also, January 2018 included an abdominal ultrasound showing no liver lesions or ascites, and that the liver was enlarged with some fatty liver component to it, consistent with recent elastography (fibroscan) study. Indeed, December 2017 treatment note indicated that chronic hepatitis C was without clinical or biochemical evidence of liver disease, and that fibroscan was suggestive of early cirrhosis, with a score consistent with mild hepatic steatosis. A February 2018 note indicated that the Veteran had non-cirrhotic hepatitis C that was asymptomatic. He had completed eight weeks of Mavyret. Labs drawn indicated that hepatitis C was undetectable.
At his February 2018 VA examination, the Veteran took continuous medication for control of his liver condition. He experienced daily malaise and fatigue, with intermittent nausea and vomiting. Again, he experienced an incapacitating episode of at least one week, but less than two during the past year. In addition, the examiner identified signs attributable to cirrhosis, biliary cirrhosis or cirrhotic phase of sclerosing cholangitis; specifically, daily weakness and an episode of ascites. The Veteran’s condition impacted work by causing fatigue on exertion.
In sum, the preponderance of the evidence is against a 40 percent rating for hepatitis C during the appeal period. Specifically, although the Veteran experienced daily fatigue and malaise, there is no indication in the record that the Veteran had daily anorexia with minor weight loss and hepatomegaly. Even considering the November 2013 ultrasound showing hepatomegaly, there was never an indication of minor weight loss, nor was there evidence of daily anorexia. In addition, the Veteran did not experience incapacitating episodes of four weeks. As such, a 40 percent rating according to DC 7354 must be denied. 38 C.F.R. § 4.114, DC 7354
The Board has also considered Note 1 of 38 C.F.R. § 4.114, DC 7354, which instructs adjudicators to evaluate sequelae, such as cirrhosis or malignancy of the liver. Cirrhosis is rated under DC 7312. It provides that a 10 percent rating requires symptoms such as weakness, anorexia, abdominal pain, and malaise. A 30 percent rating requires portal hypertension and splenomegaly, with weakness, anorexia, abdominal pain, malaise, and at least minor weight loss. A 50 percent rating requires a history of one episode of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis). A 70 percent rating requires a history of two or more episodes of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis), but with periods of remission between attacks. A 100 percent rating requires generalized weakness, substantial weight loss, and persistent jaundice, or; with one of the following refractory to treatment: ascites, hepatic encephalopathy, hemorrhage from varices or portal gastropathy (erosive gastritis). 38 C.F.R. § 4.114, DC 7312.
A corresponding Note indicates that for evaluation under DC 7312, documentation of cirrhosis (by biopsy or imaging) and abnormal liver function tests must be present. Id.
Here, the evidence indicates that a December 2017 fibroscan revealed cirrhosis, and there is evidence of abnormal liver function tests, namely AST and ALT tests from December 2013. The February 2018 VA examiner attributed weakness and one episode of ascites, which was documented on February 12, 2017, to the Veteran’s cirrhosis. Resolving all reasonable doubt in the Veteran’s favor, the Board will afford a separate 50 percent rating for cirrhosis effective February 12, 2017, based on a history of one episode of ascites. The Board observes that this is the earliest date that imaging and testing revealed cirrhosis, and symptomatology that has been attributed to the cirrhosis, namely ascites, was present. A greater rating is not warranted where the preponderance of the evidence is against finding that there is a history of two or more episodes of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis), but with periods of remission between attacks.
REMANDED ISSUES
1. A compensable rating for left knee degenerative arthritis is remanded.
While the record contains contemporaneous VA examination regarding the Veteran’s left knee degenerative arthritis, the examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examination does not contain passive range of motion measurements or pain on weight-bearing testing. Hence, remand is warranted for an adequate examination.
2. A compensable rating for right knee degenerative arthritis is remanded.
While the record contains contemporaneous VA examination regarding the Veteran’s right knee degenerative arthritis, the examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examination does not contain passive range of motion measurements or pain on weight-bearing testing. Thus, remand is warranted for an adequate examination.
3. A rating greater than 20 percent for status post-operative right ankle injury is remanded.
While the record contains contemporaneous VA examination regarding the Veteran’s right ankle, the examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examination does not contain passive range of motion measurements or pain on weight-bearing testing. Given such, remand is warranted for an adequate examination.
The matters are REMANDED for the following action:
1. Obtain the Veteran’s VA treatment records for the period from March 2018 to present.
2. Schedule the Veteran for an examination of the current severity of his left and right knee disabilities. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the left and right knee disabilities alone and discuss the effect of the Veteran’s disabilities on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).
3. Schedule the Veteran for an examination of the current severity of his right ankle. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing and, if appropriate, with range of motion measurements of an opposite undamaged joint. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the right ankle disability alone and discuss the effect of the Veteran’s right ankle disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).
YVETTE R. WHITE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD A. Barner, Counsel